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Michigan Bill Puts Breadwinners Over Kids in Custody Disputes

The Michigan House of Representatives is considering a bill that could up-end child custody decisions across the state. By renaming the Child Custody Act the Michigan Shared Parenting Act, the bill signals just where its priorities lie, and it’s not with the children.

On May 31, 2017, Representative Jim Runestad, a Republican from Waterford, and six of his party colleagues put for House Bill 4691. The bill would drastically change the way family law is practiced in Michigan, by substantially amending the Child Custody Act and renaming it the Michigan Shared Custody Act.

The Way The Child Custody Act Works Now

The Michigan Child Custody Act, MCL 722.21 et seq., applies any time two fit people (parents or third parties) disagree over the care and custody of a minor child. It gets used in divorce actions, as well as paternity and custody actions between unmarried co-parents. Everything in the Child Custody Act puts the children first. It provides a consistent statutory structure to guide family judges in creating parenting time schedules that work for a wide variety of families.

The Michigan Shared Parenting Act takes the focus off children

If HB 4691 passes, the Michigan Shared Parenting Act will shift the focus of the statute from children’s interests to parents’ rights. The bill claims it protects the “best interests of the child” by protecting “the right of the child to a substantially equal parenting time arrangement that promotes a strong relationship between a child and his or her parents.” But it is not the child who cares about overnights or equality. It is the parents in litigation. The entire statute places the priority the fairness of parents’ rights.

For example, the Child Custody Act gives preference to a parent who has an “established custodial relationship” with the child. This means that the court is not likely to interfere with the child’s relationship with a parent (or parents) to whom he or she looks for guidance, discipline, support, and comfort. This was determined based on the facts in each family situation. (Edit: Thank you to the commenter who noted the original version of this post gave the impression that only one parent can have an established custodial environment with the child. This is untrue. Courts often find established custodial environments with both children, even when they live separately.) But under the Michigan Shared Parenting Act, the “established custodial environment” is assumed any time a parent shares an address with the child at the start of the case or files a piece of paper with the court within the first 90 days. This pushes the child’s relationship to the background and attaches legal significance to what the parent wants, without any reference to what is true.

Cookie Cutter Solutions to Diverse Family Situations

The proposed Michigan Shared Parenting Act substantially restricts a family law judge’s ability to design a custody order that works for a particular family and its needs. If that new, paper-thin “established custodial environment” mandates that the court must award joint legal custody (governing decision making over the children) and “substantially equal parenting time” which is explicitly defined as:

“The child resides for alternating periods of time with each parent and that the court seeks to provide balance and equality in overnights, with 1 parent not to exceed 200 overnights in a year unless otherwise adjusted for or agreed to by the parties.”

With 365 overnights each year, an exact 50/50 division of overnights is 182.5. That leaves almost no leeway for parents whose lives don’t fit the normal model. Even if both parents are excellent, a substantially equal parenting time arrangement may not work if:

Either parent works second or third shift

Either parent travels for work

The parents live more than 50 miles apart

Either parent has transportation challenges

There are also any number of reasons why a parent or child may not be well suited to a substantially equal parenting time schedule. A substantial equal parenting time schedule may not be the best for the child if:

One parent has an alcohol or drug issue

One parent has mental challenges that make discipline difficult

One parent is less reliable in meeting deadlines or schedules

One parent is less able to assist with homework or school projects

The child has special needs that require consistent schedules and environments

The child has behavioral challenges that one parent is not able to address

In any of these cases the bill would require the party seeking more than 200 overnights for any reason to either settle the case without the judge’s help or prove by clear and convincing evidence (the highest bar in any civil court) that it is not in the child’s best interests.

Changes to Best Interest Factors put money first

The core of the Child Custody Act is the Best Interest Factors in MCL 722.23, which guide the courts to focus on the needs of the children. But under the Michigan Shared Parenting bill, the focus of these factors will shift in away from the child and onto the money. Subtle changes in the wording put a stronger emphasis on financial support and minimize a person’s actual ability to parent the child. Arguments about parenting style may only be considered if they “materially compromise the stability of the home, the health, safety, or well-being of the child.” So rather than what is best, the courts are limited to determining if a parent’s choices cause harm.

Small Changes add up to big headaches

There are a number of other small changes wrapped up in the Michigan Shared Parenting bill, and few of them are for the better. If passed, the bill could put teenagers in the middle of their own custody decisions by making the preferences more important than other factors. It would empower courts to enter orders prohibiting essential decisions for minor children until the parties can agree, which could leave children unable to obtain crucial medical care or enrollment in time-sensitive educational and social activities. It would also allow deployed parents to designate any third party to exercise their parenting time and even maintain an “established custodial environment” with the absentee parent, even when the parent himself or herself is essentially a stranger.

HB 4691 is a problem for children across the state. It puts parents issues over children’s interests. It strips judges of the power to protect children from unhealthy relationships. And it makes it harder for parents to do what is best for their children. Contact your representative and tell him or her to vote no on HB 4691.

Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. If you need help with a child custody dispute, contact Schmidt & Long today for a free consultation.

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